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Himachal Pradesh High Court · body

2021 DIGILAW 884 (HP)

Hari Singh, S/o. Sh. Kishan v. State of H. P.

2021-11-23

SANDEEP SHARMA

body2021
ORDER : Sequel to order dated 16.11.2021, whereby the petitioner was ordered to be enlarged on bail in case FIR No. 279/2021 dated 12.10.2021, registered at PS Sundernagar, District Mandi, Himachal Pradesh, under Section 376 of the IPC and Section 6 of the POCSO Act, 2012, respondent-state has filed the status report. ASI Vijay Ram, I/O P.S. Sundernagar, is also present with the records. Records perused and returned. 2. Close scrutiny of record/status report reveals that on 20.10.2021, police after having received intimation from the Civil Hospital Sundernagar, District Mandi, that one minor girl, aged 12 years, is pregnant, recorded the statement of victim-prosecutrix (named withheld) under Section 154 Cr.PC, wherein she alleged that she is 16 years old and used to visit the house of her grandmother at Baggi. She disclosed to the police that during her visit to village Baggi, she developed acquaintance with present bail petitioner and wanted to solemnize marriage with him. She further disclosed to the police that one year back, she against the wishes of her parents solemnized marriage with the present bail petitioner and since then, had been residing with him as his wife. She stated that on 20.10.2021, suddenly, she felt pain in her stomach and was brought to the hospital, doctor disclosed that she is pregnant. She categorically stated to the police that she of her own volition and without there being external pressure developed physical relationship with the present bail petitioner. Though, on 21.10.2021, police gave application for medical examination of the victim-prosecutrix, but she refused to undergo the same. In her statement recorded under Section 164 Cr.PC before the learned ACJM, Sundernagar, victim-prosecutrix reiterated that she of her own volition and without there being external pressure solemnized marriage with the present bail petitioner one year back and since then, she had been residing at her in-laws place with the bail petitioner. She disclosed before the learned ACJM that after her having solemnized marriage with the bail petitioner, she became pregnant, but once she was brought to the hospital for checkup, case was registered against the bail petitioner. During investigation, police collected record with regard to date of birth of the victim-prosecutrix, wherein it was found that date of birth of the victim-prosecutrix is 11.8.2006 and as of today, she is 15 years 2 months old. During investigation, police collected record with regard to date of birth of the victim-prosecutrix, wherein it was found that date of birth of the victim-prosecutrix is 11.8.2006 and as of today, she is 15 years 2 months old. Since investigation in the case at hand is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of bail. 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General while admitting factum with regard to joining of investigation by the bail petitioner in terms of order dated 16.11.2021, submits that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail, be rejected outrightly. 4. Having heard learned counsel for the parties and perused material available on record, this court finds that case at hand came to be registered against the petitioner on the information supplied by the Civil Hospital Sundernagar with regard to pregnancy of the victim-prosecutrix, who subsequently in her statements recorded under Sections 154 and 164 Cr.PC has specifically stated that she is 16 years old and had been meeting the bail petitioner for the last one year. She has also stated that one year back, she had solemnized marriage with the present bail petitioner and since then, is residing at her in-laws house, which fact otherwise stands duly substantiated with the statement of her mother recorded under Section 161 Cr.PC. Mother of the victim prosecutrix in statement given to the police, has specifically stated that her minor daughter has solemnized marriage with the present bail petitioner and since then, she is residing at her in laws house. Victim-prosecutrix in her statement recorded under Section 164 CrPC has stated that she of her own volition without therein being external pressure maintained physical relationship with the present bail petitioner and nothing wrong happened against her wishes. 5. No doubt, in the case at hand, age of the victim-prosecutrix is 15 years and 2 months old, but factum with regard to marriage inter-se bail petitioner and victim-prosecutrix stands duly established on record. Moreover, victim-prosecutrix is pregnant from the lions of the present bail petitioner. 5. No doubt, in the case at hand, age of the victim-prosecutrix is 15 years and 2 months old, but factum with regard to marriage inter-se bail petitioner and victim-prosecutrix stands duly established on record. Moreover, victim-prosecutrix is pregnant from the lions of the present bail petitioner. Though marriage inter-se bail petitioner and victim-prosecutrix cannot be said to be legal, but that cannot be ground at this stage to deny the bail to the present bail petitioner because in the event of bail petition being dismissed, ultimate sufferer would be the victim-prosecutrix, who has not only solemnized marriage with the bail petitioner, but she is also pregnant. No doubt consent, if any, of the victim-prosecutrix is immaterial on account of her age, but this Court cannot loose sight of the fact that victim-prosecutrix has already solemnized marriage with the bail petitioner and she is pregnant also. Though in such like cases, interest of the society at large is of paramount importance, but in peculiar circumstances of the cases, as have been taken note herein above, this court finds that interest of victim-prosecutrix is paramount and as such, prayer made on behalf of the petitioner for grant of bail deserves to be considered. Though, case at hand is to be decided by the court below in the totality of the evidence collected on record by the investigating agency, but having taken note of the aforesaid glaring aspect of the matter, there appears to be no reason to send the bail petitioner in judicial custody, during the pendency of the trial. Since guilt if any, of the bail petitioner is yet to be established on record, by the investigating agency by leading cogent and convincing material on record, it may not be proper at this stage to curtail the freedom of the bail petitioner for an indefinite period during trial. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or temper with the prosecution evidence, can be best met by putting bail petitioner to stringent conditions. 6. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or temper with the prosecution evidence, can be best met by putting bail petitioner to stringent conditions. 6. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 7. The Hon’ble Apex Court in Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 49; held as under:- “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 8. In Manoranjana Sinh Alias Gupta Vs. CBI, 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under:- “This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 9. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 9. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail : (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 10. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- “11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 ). 11. Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. 11. Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under : “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons. 12. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons. 12. Consequently, in view of the above, order dated 16.11.2021, passed by this Court, is made absolute, subject to the following conditions : (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 14. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.